Case o' The Week: Ninth Chokes on Strangling Challenge - Harrington and Double Counting in Assault Guideline

Convicted for strangling, higher guideline for strangling -- and double-counting challenge strangled, too.

  United States v. Harrington, 2019 WL 7161279 (9th Cir. Dec. 24, 2019), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Callahan and Christen. Hard-fought appeal by AFD Jeremy Sporn, Federal Defenders of Eastern Washington and Idaho, Inc.  

Facts: Harrington strangled his spouse in Indian Country, and pleaded guilty to assault in violation of 18 USC § 113(a)(8). Id. at *1. (This statute criminalizes strangling a spouse within specified jurisdictions). At sentencing, the government sought three additional levels under USSG § 2A2.2(b)(4), because the offense involved strangling a spouse. Id. Over defense objection the court imposed the enhancement.

Issue(s): “Harrington contends that the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4) of the U.S. Sentencing Guidelines (“Guidelines”). He contends that because his conviction was for strangling a spouse, that conduct was already accounted for in the base offense level of § 2A2.2(a).” Id.

Held: “We affirm the district court.” Id. at *1. “Harrington contends that the district court erred in applying the three-level adjustment for strangling a spouse in subsection (b)(4), on the ground that the base offense level in subsection (a) has already taken that conduct into account. We disagree. A plain-text reading of the Guideline indicates that the base offense level contemplated by § 2A2.2(a) does not necessarily capture the conduct detailed in the ‘specific offense characteristics.’” Id. at *3.

Of Note: The acid test for double-counting is whether it is possible to come within the guideline enhancement, without that conduct having been an element for the offense of conviction. See id. at *3 (quoting United States v. Reese, 2 F.3d 870 (9th Cir. 1993)). Here, “strangling” was an element of the federal offense. It was also one (of several) triggers for the specific offense enhancement.

  Judge Fletcher explains, however, that it is possible to trigger this particular base offense level enhancement without a victim being strangled. Id. at *3. Because the conduct tied to the element of conviction – strangling – was not necessarily required for this guideline enhancement, the Ninth finds no double counting. 

  Disappointing result, but the Ninth’s old Reese test ultimately controls the double counting analysis.

How to Use: In Harrington, there was a good-faith legal dispute over a particular guideline enhancement. Notably, the USAO for the ED of Washington was not afraid to defend its legal position in the Ninth. The government allowed Mr. Harrington to enter a conditional plea, and take up a sentence imposed that was over 78 months. See id. at *2. Harrington is a good reminder that a conditional plea needn’t be an all-or-nothing proposition: they aren’t just to preserve appeals for suppression motions. Give Harrington to your local AFPD: other USAO’s should emulate ED WA’s admirable courage in allowing all types of conditional plea agreements.

                                               

For Further Reading: What a three days, in San Francisco.

District Attorney Chesa Boudin

  On January 8, 2020, former public defender Chesa Boudin swore in as the District Attorney for the City of San Francisco. See article here. Among other campaign promises, Mr. Boudin has pledged to eliminate gang enhancements. See article here.  

  The day after Mr. Boudin swore in, US Attorney David Anderson promptly held a press conference and announced federal capital charges for alleged gang members. See article here. 

The Hon. US Attorney David Anderson

  The day after Mr. Anderson's press conference, on January 10th, Mr. Boudin fired the managing attorney of the D.A.’s gang unit. See article here.

  If you’re interested in Federalism, the proper relative roles of federal and city governments in local crime enforcement, and the power struggles over policy decision-making on criminal law issues, spend three days in the City by the Bay.

Image of the 2018 Federal Sentencing Guidelines from https://twitter.com/TheUSSCgov/status/1057716005361905665

Image of District Attorney Chesa Boudin from https://www.kqed.org/news/11793457/can-s-f-s-chesa-boudin-flip-the-script-for-progressive-das-across-the-country 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Turns Up Nose at State Action and Federal Sentences - Lizarraga-Carrizales and Safety Valve

“Lizarraga may have obtained the termination of his probation in hope of affecting his sentence for the federal offense, thus risking an odor of gaming the federal sentencing system.” United States v. Lizarraga-Carrizales, 2014 WL 2958614, *5 (9th Cir. July 2, 2014), decision available here.

 

Players: Decision by Judge Callahan, joined by Judges Trott and District Judge Bennett. Hard-fought appeal (following some admirable pre-sentencing litigation) by AFD James Fife, Federal Defenders of San Diego, Inc.

Facts: Lizarraga-Carrizales was caught on the border with 7 kilos of heroin, and convicted of drug importation. Id. at *1. That triggered a ten-year mand-min under 21 U.S.C. § 960(b). Id. 
  The district court rejected his arguments for Safety Valve, finding him ineligible because he had too many criminal history points (five, instead of the maximum of one). Id.  

Issue(s): “Lizarraga claims that the district court improperly engaged in judicial fact-finding in denying him safety valve relief from the mandatory minimum sentence and misapplied the Sentencing Guidelines.” Id. at *1. “Lizarraga’s primary contention on appeal is that the facts underlying the safety valve determination must be submitted to a jury under Apprendi . . . . and Alleyne . . . . We have yet to decide in a published decision whether the safety valve determination implicates Alleyne . . . .” Id. at *2 (internal quotations and citations omitted)..  

Held: “We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States . . .  133 S. Ct. 2151 . . . (2013), because it does not increase the statutory minimum sentence.” Id. at *1. “We agree with the First Circuit that the denial of safety valve relief does not increase the statutory maximum or minimum such that Alleyne is implicated . . . . Accordingly, the factual predicate for denying safety valve relief need not be proven to a jury.” Id. at *3.  

Of Note: Lizarraga-Carrizales is a buffet of unappetizing entrees for counsel slugging away for their Safety Valve-(ish) clients. Through some clever and aggressive litigation, two of the state probation terms that caused unwanted points in this case were ended early, nunc pro tunc, in state court. Id. at *4. 
  The Ninth resuscitates these dead probationary terms, concluding that the key issue was whether the defendant was on probation at the time of the offense – not at the time of the federal sentencing. The tone of the opinion takes umbrage at state court’s tinkering with facts underlying a federal sentence. Interesting to contrast this federal supremacy theme to the remarkable deference shown to state courts in AEDPA habeas litigation, where state rulings on criminal law issues seem to reign supreme.

How to Use: A client gets a CH point only if the actual probation sentence imposed is more than a year. What if a Safety Valve aspirant gets that state probationary term reduced to less than a year, nunc pro tunc, after the federal arrest? That’s one narrow little issue left unresolved in Lizarraga-Carrizales. See id. at *5. There’s some tension in Ninth law on this issue – take a look if a sympathetic state judge is open to some help on a probationary term.

                                               

For Further Reading: The -2 offense level reduction in the drug guidelines is fully retroactive! See Press Release here.  The Sentencing Commission voted on Friday July 18 to make their amendment to the drug guideline fully retroactive. On average, this change will save 25 months off of a federal sentence. Id.

 Sentencing Commissioners in office of Hon. Senator Durbin

Barring Congressional action, judges can start considering petitions for reductions after November 1, 2014 (though no inmate will be released before November 1, 2015). 

  In the ND Cal, new SF AFPD Shilpi Agarwal will be spearheading the effort to get the district’s CJA clients retroactive relief – stay tuned for more news and updates on these efforts. 

  Finally, NorCal’s own Judge Breyer was one of the Commissioners who voted for full retroactivity of this amendment – much credit due to the Hon. CRB (and his fellow Commissioners) for this remarkable USSG development.

Image of man holding nose from, http://traytables-travels.blogspot.com/2010/09/on-nose.html Image of Commissioners at the office of the Honorable Senator Dick Durbin from http://www.durbin.senate.gov/public/index.cfm/files/serve?File_id=3211cb90-c327-484d-9ce9-364d7794cda5

Steven Kalar, Federal Public Defender, ND Cal Website at www.ndcalfpd.org

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